Ukraine Symposium – Maritime Neutrality in the Russia-Ukraine Conflict
Most of the reporting and commentary regarding the conflict between Russia and Ukraine has so far focused on the land domain of warfare. However, there are significant maritime legal aspects to the conflict.
An earlier post in this symposium briefly touched on maritime neutrality, in which Professor Heintschel von Heinegg addressed the prohibition upon neutral powers supplying warships, ammunition, or war material to a belligerent. This post deals with some of the other prohibitions and obligations imposed on belligerent parties that arise under the law of maritime neutrality.
The Law of Maritime Neutrality
The law regarding neutrality, as it is applied in the case of naval warfare, deals with the rights and duties of neutral States and belligerent States. Hague Convention XIII (1907), to which both the Russian Federation and Ukraine are party, sets out many of its rules and is supplemented by customary international law. These rules are premised on the fundamental concept that while belligerents are involved in an armed conflict at sea there is an ongoing requirement for maritime trade and commerce to continue among neutral States and between neutral States and belligerent parties with as little interruption as possible.
The fact that the two main maritime regions that are directly affected by the conflict are reasonably remote from major global sea lanes of communication does not alter the legal issues that arise under the law of maritime neutrality applicable during an international armed conflict. In the present case, there are two primary sea areas relevant to the conflict. The first of these is the Sea of Azov which is an internal sea entirely bordered by Russia and Ukraine, with access to the Black Sea only available through the Kerch Strait. Questions of neutral waters (i.e., territorial waters that are under the sovereignty of a neutral State) do not arise in the Sea of Azov as the only States that have any territorial seas there are Russia and Ukraine.
However, in the Black Sea a quite different story emerges. In addition to Russia and Ukraine, four other States border the Black Sea: Romania, Bulgaria, Turkey, and Georgia. As each of these States is entitled to claim up to 12 nautical miles territorial sea, there are significant areas of neutral waters in the Black Sea where belligerent acts by either Russia or Ukraine are prohibited.
Article 1 of Hague XIII requires belligerents to “respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.” Article 2 of that treaty reinforces and states: “Any act of hostility, including capture and the exercise of the right of search, committed by belligerent warships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden.” The combined effect of these two articles is that the maritime areas of operations in which Russia and Ukraine can legitimately conduct their naval operations are restricted to the internal waters of both belligerents, their territorial seas, and areas outside the territorial seas of neutral States.
At the time of writing, there has only been one maritime incident involving an act of hostility in neutral waters, when Russian naval forces reportedly captured two Ukrainian flagged vessels in the Romanian territorial sea. If this report is accurate, it represents a clear breach of Romanian neutrality by Russia, as the act of intercepting and capturing a belligerent’s merchant vessel in a neutral State’s territorial sea is forbidden.
Romania, like Russia, was one of the original signatories to Hague XIII in 1907, while Ukraine acceded to the convention in 2015. The three other Black Sea-bordering States are not party to this convention. Romania’s status as a State party to Hague XIII is important as Article 3 of that convention places an obligation on a neutral Power to “employ … the means at its disposal to release the prize (i.e., the vessel) with its officers and crew, and to intern the prize crew” if the vessel(s) is still within its jurisdiction.
On one view, it can be implied that Article 3 implies an obligation for the neutral State to maintain a certain level of vigilance over its territorial sea so that the State can fulfil its Article 3 obligations. This interpretation is not without support, as the famous Corfu Channel case found that such a general obligation existed in the circumstances that pertained in that case. At the very least, there is an obligation on the part of a neutral State to use the “means at its disposal” to take action against the belligerent warships that have breached its neutrality through their act of capturing a vessel in the neutral State’s waters.
However, the obligations that arise under Article 3 do not stop at this point as the article also states: “If the prize is not in the jurisdiction of the neutral Power, the captor Government, on the demand of that Power, must liberate the prize with its officers and crew.”
It would seem that this limb of Article 3 is less proscriptive in terms of the obligation that is placed on the belligerent State, as it only becomes operative if the neutral States places a “demand” on the captor Government. The article does not specify what circumstances need to exist for such a demand to be placed, presumably leaving such questions as a matter for the neutral State to determine according to its own assessment of the political and strategic situation.
Applying these first three clauses of Hague XIII to the reported capture of the Ukrainian flagged vessels in the Romanian territorial sea, the following points can be made (assuming the report is accurate):
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- The capture of Ukrainian flagged vessels by Russian naval forces in the Romanian territorial sea constitutes violation of neutrality (Article 1 and Article 2);
- Obligation to use the “means at its disposal” to release a captured vessel arise for Romania if belligerent acts, such as capture, occur in its territorial sea (Article 3);
- Russia is required to release the Ukrainian flagged vessels upon demand from Romania (Article 3).
Naval Mines
Mine warfare is another aspect of the law of maritime neutrality that has emerged from the conflict. The first issue relates to the reports that have emerged of free-floating naval mines being found in neutral waters (Turkey, Bulgaria and Romania) in the Black Sea. It is not clear from these reports which State or States are responsible for laying mines in the Black Sea, but it is possible that both Russia and Ukraine may have done so.
The use of naval mines by belligerents during an international armed conflict is permitted. However, restrictions on the use of naval mines do apply. In the case of automatic submarine contact mines, these restrictions are set out in Hague Convention VIII (1907) and include the prohibition on the use of unanchored automatic contact mines that do not become harmless within an hour of control of the mine being lost, and the prohibition on the use of anchored automatic contact mines that do not become harmless as soon as they break loose from their moorings.
Laying automatic contact mines off the coast and ports of the enemy, with the sole purpose of intercepting commercial shipping, is also forbidden. It is arguable that these fundamental principles of naval mine warfare apply to all types of naval mines as a matter of customary international law and would therefore apply in the present conflict between Russia and Ukraine.
The second issue relates to the laying of mines by neutral States off their coasts. This is also expressly permitted under Article 4 of Hague Convention VIII (1907), to which Romania alone among the six Black Sea littoral States is party, but is arguably supported by customary international law. However, in such cases, an obligation to notify the presence of naval mines to international shipping arises, along with the obligation to remove such mines once hostilities have ceased.
Concluding Thought
Hague XIII contains a range of other rules dealing with relations between neutral States and belligerent States (and their vessels) but in the current context of the conflict between Russia and Ukraine these remaining rules do not seem particularly relevant—although it is quite possible that this situation could change.
It was mentioned at the start of this post that the maritime domain of the conflict between Russia and Ukraine has not been as prominent as the land domain. Nevertheless, the potential for the conflict to escalate and involve States that are ostensibly neutral at the moment cannot be ignored. It is incumbent on all parties involved, belligerent and neutrals, to ensure that conflict does not spread further into a wider region and that the conflict ends with as little further destruction and death as possible.
***
David Letts is Director of the Centre for Military and Security Law at the Australian National University College of Law.
Photo credit: U.S. Navy photo by Mass Communication Specialist 3rd Class Weston Jones
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